Court of Appeals renders first published post-Latimer decision on relocation

Our [South Carolina] Court of Appeals rarely prohibited a parent from relocating with a child (at least in the opinions it published) when our Supreme Court had a presumption against relocation. So it’s not surprising that, in its first reported relocation decision since the Supreme Court removed the presumption against relocation in Latimer v. Farmer, 360 S.C. 375, 602 S.E.2d 32 (2004), the Court of Appeals has approved a relocation in Walrath v. Pope, 384 S.C. 101, 681 S.E.2d 602 (Ct.App. 2009).

The decision did not seem a hard one. The parties were divorced in Texas in 2002 with mother awarded custody and the right to relocate. And relocate she did: from Texas to Maryland in 2003 and from Maryland to South Carolina in 2004. Both times father followed her. When mother’s employer told her she needed to move to the Kansas City area to keep her job, she decided to move again. This time, father tried to stop her, filing for custody or an order prohibiting mother from relocating. The family court rejected father’s requests and he appealed.

The Court of Appeals affirmed the family court, approving mother’s relocation request and denying father’s request for a change of custody. From the Court of Appeals’ opinion, it does not appear that father provided the lower court any reason to think he could do a better job caring for the children than mother was doing. Further, mother’s incipient job loss seems like a good reason to relocate. Finally father has always followed the mother when she relocated–the Court of Appeals notes mother’s cooperative attitude with father regarding these moves–and father expressed an intent to move again if mother was allowed to move to Missouri. Left with a choice between an unemployed custodial parent and both parents moving to Missouri, neither courts’ decision is surprising.

Noteworthy in the opinion is the language: “the GAL [guardian ad litem] recommended the family court allow Mother to move to Kansas City.” Such a recommendation appears in conflict with S.C. Code Ann. § 63-3-830(A)(6). That code subsection puts limitations on guardians: “The final written report must not include a recommendation concerning which party should be awarded custody, nor may the guardian ad litem make a recommendation as to the issue of custody at the merits hearing unless requested by the court for reasons specifically set forth on the record.” The Court of Appeals decision contains no explanation of why the guardian was allowed to make this recommendation, and father did not appeal this issue. However this opinion is further evidence supporting my view that there is a substantial gulf between what guardians are supposed to do and what guardians will do if attorneys don’t demand strict compliance with the private guardian ad litem statute.